Chương VIII Nghị định 159/2020/NĐ-CP: Khen thưởng, kỷ luật người quản lý doanh nghiệp nhà nước, kiểm soát viên, người đại diện phần vốn nhà nước

Chapter VIII

COMMENDATION, REWARDING, DISCIPLINING OF EXECUTIVES OF STATE ENTERPRISES, COMPTROLLERS, REPRESENTATIVES OF STATE OWNERSHIP INTERESTS

Article 55. Commendation and rewarding

Executives of state-owned enterprises, comptrollers and representatives of state ownership interests that work at merit or with great devotion shall be commended and/or rewarded according to the provisions of the law on emulation, commendation and rewarding.

Article 56. Disciplinary principles

1. Objectivity and fairness; transparency, public disclosure; strictness, legitimacy.

2. Each violation will be handled only once by one form of discipline. At the same time of consideration of the disciplinary action, if 02 or more acts of violation are committed, the violator shall be disciplined for each of his/her violation separately and be subject to the sanction which is one level heavier than the sanction the law applies to the most serious violation, except in the form of dismissal from work; shall not separate each violation content for imposition of the sanction in multiple times with respect to different disciplinary forms.

3. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests that is executing the disciplinary decision continues to commit the violation, the following disciplinary measure shall be applied:

a) If the violation is subject to the disciplinary action which is lighter than or equal to the current one, the disciplinary action must be one level heavier than the current one;

b) If the violation is subject to the disciplinary action which is heavier than the current one, the disciplinary action must be one level heavier than the current one imposed on the latest violation.

4. When considering imposing any disciplinary action, the content, characteristics, extent, harm, causes of the violation, aggravating or mitigating circumstances, consciousness of guilt, self-correction, remedies against violation and consequences must be taken into consideration.    

5. Imposing administrative sanctions or Party's disciplines in place of those referred to in this Decree shall be prohibited; imposing disciplinary action against a violation not to the extent of being subject to a criminal sanction shall not serve as a replacement for criminal prosecution proceedings.   

6. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests committing a violation has already been subject to the Party's sanction, the disciplinary action against the violator must resemble the Party's sanction.

Within 30 days from the date of announcement of the Party’s sanction decision, the relevant competent authority must consider deciding whether the disciplinary action is imposed.

7. All acts of infringing upon the body, spirit, honor and dignity must be strictly forbidden in the course of taking disciplinary actions.

8. If any executive of state-owned enterprise, comptroller or representative of state ownership interests that commits a violation for the first time have already been disciplined and repeat such violation within 24 months from the effective date of the disciplinary decision, such act will be considered recidivism; after the 24-month time limit from the date of commission of that act of violation, such violation shall be considered as the initial violation, but deemed as an aggravating factor when determining the disciplinary sanction.

Article 57. Limitation periods and time limits for imposition of disciplinary sanctions

1. Limitation period for imposition of disciplinary sanction is the time limit after which none of disciplinary sanctions is imposed. The limitation period for imposition of a disciplinary sanction starts from the time of determination of violation against law to the time of issuing the notice of holding a criticism meeting as prescribed in Article 65 of this Decree. Unless otherwise provided in clause 2 of this Article, the limitation period for imposition of disciplinary sanction shall be prescribed as follows:

a) 02 years for a violation against law that is less serious to the extent of imposing the disciplinary sanction in the form of reprimand;

b) 05 years for illegal acts not falling into the cases specified at point a of this clause.

2. The limitation period for imposition of disciplinary sanction for one of the following violations against law shall not be applied:

a) The executive of state-owned enterprise, the comptroller or the representative of state ownership interests who is a Party member commits an illegal act to the extent of imposing the disciplinary sanction in the form of expulsion from the Party;

b) Committing violations arising from internal political protection activities;

c) Committing any act of infringement upon national interests in the national defence, security and external relation domains;

d) using counterfeit or illicit qualifications, degrees, certificates or credentials.

3. The limitation period for imposition of disciplinary sanction upon the executive of state-owned enterprise, the comptroller and the representative of state ownership interests extends from the time of issuing the notice of holding a personnel criticism meeting as prescribed in Article 65 of this Decree to the date of issue of the disciplinary sanction decision of the relevant competent authority.

The limitation period for imposition of the disciplinary sanction must be 90 days or less. Where a case has complicated facts, needing more time for inspection and examination for further verification and clarification, such limitation period may be extended but be restricted to 150 days.

4. In case the executive of state-owned enterprise, the comptroller or the representative of state ownership interests is under investigation, prosecution or on trial according to the criminal proceedings, but then receiving the decision to suspend the investigation or dismiss the legal case, and his/her violation is suspected to be a breach of discipline, he/she may be subject to a disciplinary action.

The time period of investigation or trial according to the criminal procedures shall not be included in the limitation period.

Within 03 working days from the date of issuance of the decision to suspend the investigation or dismiss the case, the decision maker must send the decision and attached documents to the authority having competence in imposing the disciplinary action.

Article 58. Forms of discipline and levels of violation

1. Forms of disciplinary action imposed upon executives of state enterprises, comptrollers shall include: Reprimand, caution, dismissal and compulsory termination of term of office.

2. Forms of disciplinary action imposed upon representatives of state ownership interests shall include: Reprimand, caution, early discharge from office and compulsory termination of term of office.

3. Levels of violation shall be determined as follows:

a) Violations that cause less serious consequences are violations causing less minor harm, impacts inside the enterprise, and effects on the reputation of the enterprise;

b) Violations that cause serious consequences are violations causing huge harm, impacts outside the enterprise, negative public opinions and reduction in the reputation of the enterprise;

c) Violations that cause extremely serious consequences are violations causing great harm, impacts on the entire society, public annoyance and loss of the reputation of the enterprise;

d) Violations that cause specially serious consequences are violations causing extremely great harm, total impacts on the entire society, extreme public annoyance and loss of the reputation of the enterprise.

In addition to the above-mentioned grounds, the level and extent of a violation shall also be determined by the physical damage measured by the specific amount as determined by the representative agency or according to the regulations of the enterprise.

Article 59. Suspended consideration of disciplinary action and exemption from disciplinary liabilities

1. Suspended consideration and imposition of disciplinary action:

a) Taking legally prescribed annual leave, insurance covered or personal leave permitted by competent authorities;

b) Being in treatment for a serious illness or losing cognitive ability; being seriously ill and receiving inpatient care at hospitals certified by the medical authority;

c) Being a woman during pregnancy, maternity leave, or nursing a child under 12 months old; being a man (in case his wife dies or due to other objective or force majeure reasons) who is raising a child under 12 months old;

d) Being prosecuted, held in custody or temporary detention awaiting conclusions of agencies competent to investigate, prosecute or adjudicate illegal acts, except cases decided by competent agencies.

2. Exemption from disciplinary liabilities of executives of state enterprises, comptrollers, representatives of state ownership interests

a) Obtaining certification of civil act capacity from a competent agency in case of breach of violation against law;

b) Having to comply with the superior authority's decision. Where there are grounds to believe that the decision is illegal, it shall be obliged to promptly report it in writing to the authority having competence in issuing decisions; in cases where the competent authority still decides the enforcement of disciplinary action, this decision on enforcement must be made in writing and the executor must comply with it, but not responsible for the consequences of that enforcement and, at the same time, report to his/her immediate superior of the authority having competence in issuing decisions, then this authority having competence in issuing decisions shall be held responsible before law for their decision;

c) Being certified by a competent authority that the violator commits the violation in an urgent situation, due to a force majeure event or an objective obstacle in accordance with the Civil Code when performing the assigned tasks;

d) Committing violation, but now passing away.

Article 60. Imposition of disciplinary action in the form of reprimand

Disciplinary action shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws for the first time, causing less serious consequences in one of the following cases:

1. Violating regulations on labor disciplines; rules and regulations of enterprises.

2. Abusing positions of authority for self-seeking purposes.

3. Failing to comply with the decision of the competent authority; failing to perform assigned tasks without plausible reasons; causing disunity in enterprises.

4. Violating regulations of laws on: Crime prevention and control; prevention and control of social evils; social safety and order; anti-corruption; thrift and anti-extravagance practices.

5. Violating regulations of laws on protection of state secrets.

6. Violating regulations of laws on complaints and denunciations.

7. Violating regulations on democratic centralization, regulations on propaganda, speech, and internal political protection.

8. Violating regulations of laws on: Enterprises, investment, construction; land, environmental resources; finance, accounting, banking; management and use of public assets in the course of task performance.

9. Violating regulations of laws on: Domestic violence prevention and control; population, marriage and family; gender equality; social security; other provisions of laws related to enterprises.

Article 61. Imposition of disciplinary action in the form of warning or caution

Disciplinary action in the form of warning or caution shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws in one of the following cases:

1. Having already been disciplined in the form of reprimand for the violations specified in Article 60 of this Decree and then repeat that violation.

2. Violating laws for the first time, causing serious consequences in one of the cases specified in Article 60 of this Decree.

3. Violating laws for the first time, causing serious consequences in one of the cases specified in the following regulations:

a) Using counterfeit or illicit qualifications, degrees, certificates or credentials in order to obtain permission to participate in training and educational courses;

b) Failing to complete management and administration tasks as assigned by competent authorities.

Article 62. Imposition of disciplinary action in the form of early dismissal or discharge from office

Disciplinary action in the form of dismissal from or early termination of term of office shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws in one of the following cases:

1. Violating laws for the first time, causing serious consequences in one of the cases specified in Article 60 of this Decree not to the extent of compulsory termination of term of office, and in the cases where violators show consciousness of guilt, self-correction, proactively mitigating consequences and having a lot of mitigating facts.

2. Violating laws for the first time, causing serious or extremely serious consequences in one of the cases specified in clause 3 of Article 61 of this Decree.

3. using counterfeit or illicit qualifications, degrees, certificates or credentials in order to be appointed to positions or elected or designated as representatives of state ownership interests.

Article 63. Imposition of disciplinary action in the form of compulsory termination of term of office

Disciplinary action in the form of compulsory termination of term of office shall apply to state enterprise executives, comptrollers, and representatives of state ownership interests that commit violations against laws in one of the following cases:

1. Violating laws for the first time, causing specially serious consequences in one of the cases specified in Article 60 of this Decree.

2. Violating laws for the first time, causing specially serious consequences in one of the cases specified in clause 3 of Article 61 of this Decree.

3. Using counterfeit or illicit qualifications, degrees, certificates or credentials in order to be recruited to enterprises.

4. Being addicted to drugs; in this case, the competent authority's notice shall be required.

Article 64. Processes, procedures for imposition of disciplinary sanctions

1. Steps in imposing disciplinary sanctions upon executives of state enterprises, comptrollers, and representatives of state ownership interests must be as follows:

a) Holding the criticism meeting;

b) Establishing the disciplinary sanction committee;

c) Issuing the sanction decision.

2. Where disciplinary actions are imposed under decisions of competent authorities specified at point d, clause 1, Article 59 of this Decree, or executives of state-owned enterprises, comptrollers or representatives of state ownership interests committing violations against laws are sentenced to prison by courts without being entitled to suspended sentences or are convicted of corrupt acts, the provisions laid down at Points a and b, Clause 1 of this Article shall not be applied.

Article 65. Holding the criticism meeting

When discovering that executives, comptrollers, representatives of state ownership interests, the authorities having competence in imposing disciplinary actions shall hold the criticism meeting to consider disciplinary actions to be taken, including the followings:

1. Meeting participants:

a) In case the criticized person is the President of the Board of Directors, the company president or the comptroller or the representative of state ownership interests, the head of the representative agency shall preside over the criticism meeting and decide on the eligible participants in the meeting, including the leadership representative, the party committee, the trade union, the counseling body of the representative agency, the representative of the Board of Directors, the Governing Board of the enterprise where the criticized person is working;

b) In case the criticized person is the executive of the enterprise, the President of the Board of Directors or the company president of the enterprise where he/she is working shall preside over the personnel criticism meeting and decide on the eligible participants in the meeting, including the representative of the representative agency, the leadership representative, the party committee, the trade union of the enterprise where the criticized person is working;

c) The competent authority may invite more representatives from agencies, organizations and persons concerned to the meeting. The invited person shall have the right to speak but not to vote for or against disciplinary action.

2. The meeting shall be held according to the following procedures:

a) The chair of the meeting declares reasons for the meeting, appoints the secretary, informs or authorizes the counseling agency to announce the following contents: Summary of work history; act of violation; applied sanction form (if any); the time when the act of violation occurs, the time when the act is discovered; aggravating and mitigating circumstances of the person committing the violation; limitation period and time limit for handling the violation according to the provisions of laws;

b) The criticized person presents his/her self-criticism report, clearly stating his/her violation against law and binding himself/herself to disciplinary action.

In case the person committing the violation is present at the meeting but does not make the self-criticism report, the meeting shall still proceed normally. In case the person committing the violation is absent from the meeting, the meeting shall take place after 02 attempts in notifying participants and convening the meeting;

c) The meeting participants speak and clearly state their opinions on the contents specified at Point a of this Clause;

d) The meeting’s chair draws the meeting conclusion.

The criticism meeting must be documented in the minutes.

3. Within 05 working days from the end of the criticism meeting, the meeting’s chair shall be responsible for sending the meeting report and minutes to the authority having competence in imposing disciplinary action. The report must provide clear information about the followings:

a) Act of violation, extent and consequences of violation;

b) Aggravating or mitigating facts (if any);

c) Responsibilities of the violator and comparable levels of disciplinary action;

d) Limitation period and time limit for imposition of disciplinary action under laws;

dd) Recommended disciplinary action and forms (if any).

Article 66. Establishing the disciplinary sanction committee

1. Within 05 working days after receiving the report and minutes of the criticism meeting, in case where any violation is committed to the extent that disciplinary action is required, the authority competence in imposition of disciplinary action shall decide to establish the disciplinary sanction committee to advise the application of disciplinary action to the person committing the violation, except for the case specified in Article 67 of this Decree.

2. The committee shall be composed of 05 members, including:

a) The disciplinary sanction committee’s chair is the President of the Board of Directors, the company president or the leadership representative of the representative agency;

b) A Disciplinary Sanction Committee member is the representative from the Party committee superior to the enterprise’s Party committee (in case the superior Party committee is the local party committee, this disciplinary sanction committee member must be the representative of the local party committee) or the representative of the Party committee at the level the same as the level of the representative agency;

c) A member of the disciplinary sanction committee is the representative of the specialized department of the enterprise related to the person reviewed for disciplinary action;

d) A member of the disciplinary sanction committee is the representative of the executive board of the trade union of the enterprise where the person reviewed for disciplinary action is a member;

dd) The member cum the secretary of the disciplinary sanction committee is the person in charge of the counseling agency of the enterprise where the person reviewed for disciplinary action or the counseling agency of the representative agency.

3. It shall be prohibitory to appoint the spouse, natural parent, adoptive parent, natural child or adopted child; natural sibling; sibling-in-law or persons involved in the illegal act of the state enterprise executive, the comptroller or the representative of state ownership interests under review for disciplinary action to the disciplinary sanction committee.

4. In case of failure to assign a person to join the disciplinary sanction committee as prescribed in Clause 2 of this Article because he/she commits a violation or is involved in a violation or is executing the disciplinary sanction decision, the head of the representative agency shall consider and decide on the substitute personnel or report to the Prime Minister for his review and decision.

Article 67. Cases of non-establishment of the disciplinary sanction committee

1. Committing violations against laws that cause the violators to be sentenced to prison by courts without being entitled to suspended sentences or be convicted of corrupt acts by Courts or according to the decisions of competent authorities under the provisions of Point d, Clause 1 of Article 59 herein.

2. Obtaining conclusions regarding violations against laws from competent agencies and organizations.

3. Receiving disciplinary sanction decisions of the Party.

With respect to those cases prescribed herein, conclusions regarding acts of violation may be used and any investigation or verification of such violation is not needed.

Article 68. Work rules of the disciplinary sanction committee

1. The disciplinary sanction committee convenes a meeting when at least 03 members, including the Chairperson of the committee and the committee’s Commissioner cum, are present.

2. The disciplinary sanction committee proposes the application of disciplinary action through secret ballot results and must be approved by a majority of the committee’s members.

3. The committee’s meeting must be recorded in minutes of opinions of the attendees and the results of the vote on the disciplinary action.

4. The committee shall be automatically dissolved after fulfillment of its assigned tasks.

Article 69. Holding the disciplinary sanction committee’s meeting

1. Meeting preparations:

a) Within 07 working days before the meeting of the disciplinary sanction committee, the summons to the meeting must be sent to the violator. The absent violator must have sufficient grounds. In case the violator is absent after 2 times of sending the summons without plausible reasons, until the 3^rd time of sending the summons, if the violator continues to be absent, the disciplinary sanction committee still proceeds the meeting to review and recommend disciplinary actions;

b) The meeting’s chair may invite more representatives from agencies, organizations and persons concerned to the meeting. The invited person shall have the right to speak but not to cast any vote on disciplinary actions;

c) The Commissioner cum the Secretary of the disciplinary sanction committee shall be responsible for preparing documents and records related to the disciplinary action, keeping the minutes of the disciplinary sanction committee’s meeting;

d) Disciplinary sanction documentation is submitted to the disciplinary sanction committee, including:  Self-criticism statement, biodata, criticism meeting minutes of the enterprise where the violator is working and other related documents.

2. Meeting procedures:

a) The chairperson of the disciplinary sanction committee declares the meeting reasons and introduces members to attend the meeting;

b) The Commissioner cum the Secretary of the disciplinary sanction committee presents the meeting contents as follows: Biodata; act of violation, time of commission and time of detection of violation; limitation period and time limit for imposition of disciplinary action; forms of disciplinary action that have been issued; aggravating, mitigating circumstances and other relevant documents;

c) The violator reads out the self-criticism report. If the violator is absent, the Commissioner cum the Secretary of the disciplinary sanction committee reads it on his/her behalf;

d) The Commissioner cum the Secretary of the disciplinary sanction committee reads the minutes of the meeting;

dd) The committee members and participants speak;

e) The violator speaks (if any);

g) The disciplinary sanction committee votes on whether or not to discipline the violator; in case the majority of the ballots votes for the discipline; the vote on the application of the disciplinary action is conducted by casting secret ballots according to the accumulative voting approach;

h) The chairperson of the disciplinary sanction committee announces the secret voting results and approves the meeting minutes;

i) The chairperson of the disciplinary sanction committee and the Commissioner cum the Secretary of the disciplinary sanction committee signs the minutes of the meeting.

3. In case where a meeting of the disciplinary sanction committee held to consider the disciplining of multiple executives of state-owned enterprises, comptrollers and representatives of state ownership interests in the same enterprise committing violations, the disciplinary sanction committee shall conduct the disciplinary review for each violator.

Article 70. Deciding the disciplinary action

1. Procedures for issuance of the sanction decision:

a) Within 05 working days from the date of end of the meeting, the disciplinary sanction committee must propose the disciplinary action in writing (enclosing disciplinary minutes and documentation) to the competent authority;

b) Within 15 working days after receiving the written proposal of the disciplinary sanction committee in case of establishment of the disciplinary sanction committee, or after receiving the minutes of the criticism meeting as per clause 3 of Article 65 herein in the case of non-establishment of the disciplinary sanction committee, the competent authority may issue the disciplinary sanction decision or the conclusion about the non-application of disciplinary action to executives of state-owned enterprises, comptrollers and representatives of state ownership interests;

c) In case where the violation against the laws of the executive of state-owned enterprise, comptroller, representative of state ownership interests involves complicated details, the competent authority shall decide to extend the time limit for imposition of disciplinary action according to the provisions of Clause 3 of Article 57 of this Decree, and shall take responsibility for their decision;

d) If the executive of a state-owned enterprise, the comptroller or the representative of state ownership enterprises acting in violation of the law is sentenced to prison under the court’s judgement without being subject to a suspended sentence, or is convicted of corruption under the Court’s judgement, within 15 working days from the date of receipt of the legally effective judgment of the Court, the competent authority shall issue the disciplinary decision on compulsory termination of term of office in the above cases.

2. Disciplinary sanction decision must clarify the time of entry into force.

3. 12 months after the effective date of the disciplinary decision, if the state enterprise executive, the comptroller, or the representative of state ownership interests does not commit any violation to the extent of having to be disciplined, the disciplinary sanction decision shall terminate its effect without needing a written document on the termination of its effect.

If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests continue to commit the violation against law during the period of execution of the decision, the disciplinary sanction decision that is being executed shall be invalidated from the time of the entry into force of the new one.

4. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests is disciplined in the form of reprimand or warning, he/she shall be prevented from the placement planning, rotation or appointment to the higher position, or the designation as the representative of state ownership interests, for the duration of 12 months from the effective date of the disciplinary sanction decision. If the executive of state-owned enterprise, the comptroller or the representative of state ownership interests is disciplined in the form of dismissal from or early termination of term of office, he/she shall be precluded from being planned, rotated or appointed to the higher position, or designated as the representative of state ownership interests, for the duration of 24 months from the effective date of the disciplinary sanction decision.

Article 71. Complaints

The executive of state enterprise, the comptroller and the representative of state ownership interests who is disciplined may appeal against the disciplinary sanction decision under laws on complaints.

Article 72. Disciplinary documentation

1. Documentation on disciplining of an executive of state enterprise, comptroller or representative of state ownership interests must include: Request of the disciplinary sanction committee submitted to the competent authority for consideration of disciplinary action; self-review; minutes of review, criticism meetings; letters of denunciation, examination conclusions, inspection conclusions and other relevant documents; the minutes of the disciplinary sanction committee’s meeting and the disciplinary sanction decision.

2. Disciplinary sanction documentation shall be archived in personal profiles. Disciplinary actions of executives of state enterprises, comptrollers or representatives of state ownership interests must be recorded in their records.

Article 73. Responsibilities for reimbursement or return of executives of state enterprises, comptrollers, representatives of state ownership interests

If commission of violations against laws by executives of state enterprises, comptrollers, representatives of state ownership interests results in any loss or damage to the economy or property of the State or enterprises, the violators shall be responsible for reimbursement or return under laws.